This post was originally published by Legal Planet. Reprinted with permission.
Last December, the Biden administration issued a rule defining the scope of the federal government’s authority over streams and wetlands. Congressional Republicans vowed to overturn the rule, using a procedure created by the Congressional Review Act. If Congress is going to repeal something, it should be the Congressional Review Act rather than the Biden rule.
The handwringing over the Biden rule is a textbook example of the knee-jerk reactions fostered by the Congressional Review Act. Every Republican senator joined the overrule motion based on claims that the Biden rule “upended” regulatory certainty and burdened “millions of Americans.” Sen. Thom Tillis (R-NC) described it as a “stifling regulation” that would “cripple” agriculture and do irreversible damage.
On the House side of things, E&E News reported that at a hearing about the bill, some GOP representatives “argued the rule from EPA and the Army Corps of Engineers was akin to actions taken under Soviet Union dictator Joseph Stalin.” Only one witness was able to testify in favor of the rule, San Francisco law professor Dave Owen, but his sober legal analysis was swamped in the flood of invective.
The angry denunciations were misplaced. It’s true that the Biden rule is broader than the Trump rule it replaced, which itself was mired in litigation. But the Biden rule has affinities with earlier regulatory attempts going back to the 1970s. All of them have struggled with how to limit federal jurisdiction without compromising the goal of clean water.
There is a lot of history leading up to today’s disputes about federal authority over wetlands and streams. Congress set the stage when it passed the Clean Water Act 50 years ago. The law gave the federal government jurisdiction over “navigable waters.” That term had a fairly well-defined historical meaning focused on waterways that can be used for transportation. But the Clean Water Act adds a definition of its own for the term as meaning “the waters of the United States.”
Everyone agrees that Congress meant to go beyond those traditional navigable waters. What’s not clear is how far. The terms “waters” and “navigable” may suggest significant lakes and streams. But in scientific terms, those lakes and streams can’t be separated from nearby wetlands or from the smaller flows of water around them. Congress passed the Clean Water Act with ambitious goals of eliminating pollution and restoring the nation’s waters. That’s why the U.S. Supreme Court upheld federal jurisdiction over wetlands adjacent to open water bodies in 1985. That purpose is central to the Biden administration’s rule and was completely ignored in the Trump rule.
Broad claims of federal jurisdiction are nothing new. In 1986, the federal government took the position that it had jurisdiction over all wetlands that were usable by migratory birds. Fifteen years later, the Supreme Court overturned the so-called Migratory Bird Rule. Even though that rule was far broader than the Biden rule today, the sky didn’t fall during the time it was in effect: farmers, ranchers, and real estate developers all went about their business without any apparent crisis. Just before Obama took office, the George W. Bush administration issued guidance on federal authority that went well beyond the Trump regulation and took a flexible view of federal authority. In short, there wasn’t a crisis before the Trump regulation, and there won’t be one if the Biden regulation goes into effect.
In this particular case, the effort to use the Congressional Review Act may not have much practical impact. Biden would surely veto such a resolution, and the Supreme Court seems likely to provide more legal clarity in the near future. But the flaws in the process are all too typical. The act does not allow nuanced responses or political compromises: Congress must make an all-or-nothing choice between allowing a regulation to go into effect and axing it root and branch. To make things worse, the act also places limits on future agency regulations that make it harder for the agency to fix any flaws once a regulation has been overturned by Congress.
I studied the use of the act in 2017 at the hands of former President Donald Trump and a Republican Congress. What I found was that ideology and special interests were the driving factors, not economics or legal issues. The rhetoric surrounding the new Biden regulation is another illustration of how the act fosters partisanship rather than common sense.
It’s time to repeal the Congressional Review Act and leave it to agencies to decide complex policy issues rather than have Congress oversee the process based on nothing but political grandstanding.
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Daniel Farber | March 1, 2023
Last December, the Biden administration issued a rule defining the scope of the federal government’s authority over streams and wetlands. Congressional Republicans vowed to overturn the rule, using a procedure created by the Congressional Review Act. If Congress is going to repeal something, it should be the Congressional Review Act rather than the Biden rule.
Richard Pierce, Jr. | February 28, 2023
I recently accepted an invitation from Georgetown Journal of Law and Public Policy and the Pacific Legal Foundation to contribute to a symposium on “Ensuring Democratic Responsibility in the Administrative State.” I decided to begin with ideas that I borrowed from former U.S. Supreme Court Chief Justice William Howard Taft and former Justice Stephen Breyer.
James Goodwin | February 28, 2023
In today's "point" post on this blog, Member Scholar Richard Pierce described how centralized regulatory review conducted by the White House Office of Information and Regulatory Affairs (OIRA) is effective in ensuring the democratic accountability of the administrative state. In this companion post, I’ll offer a competing view of whether centralized review fulfills this objective in practice and what that means for the standards and safeguards designed to protect our health, safety, and lives.
Richard Pierce, Jr. | February 28, 2023
At the request of Senior Policy Analyst James Goodwin, I posted a brief summary of an essay in which I described the advantages that I see in expanding the scope of the White House Office of Information and Regulatory Affairs (OIRA) and combining its use of cost-benefit analysis with some doctrines that the U.S. Supreme Court has already adopted. I did so, and Goodwin suggested pairing it with a "counterpoint" post he subsequently prepared and also gave me the opportunity to rebut that counterpoint. I do so here.
Katlyn Schmitt | February 27, 2023
Everyone should have a fair chance to live the healthiest life possible, but that’s not always the case for many of our communities. That's particularly true of overburdened communities that bear the brunt of pollution and toxic chemical exposures. But help may be on the way in Maryland in the form of the Climate, Labor, and Environmental Equity Act of 2023, and I testified in strong support of the bill on February 23.
Marcha Chaudry | February 16, 2023
February started with news that's all too familiar in the United States: An incident involving highly toxic industrial chemicals sparked a large fire, threatening an explosion, forcing evacuations, and putting workers and community members directly in harm's way. In this case, the danger came from a derailed train in Ohio that was hauling cancer-causing vinyl chloride, used to make certain types of plastic; toxic phosgene, an industrial chemical that was also used as a chemical weapon in World War I; and other substances. But extreme, acute threats like the Ohio derailment aren't the only toxic chemical dangers facing workers and surrounding communities.
James Goodwin | February 15, 2023
Last week, the Biden administration took the next step on its important initiative to “broaden public engagement in the federal regulatory process,” announcing a set of proposed reforms and asking for more public feedback. As the announcement explains, these proposals reflect input the administration received during a public listening session and an open comment period it conducted last November — both of which I participated in along with several members of the public interest community. I was pleased to find that many of our recommendations were reflected in the proposals.
James Goodwin | February 9, 2023
On February 8, conservatives in the U.S. House of Representatives began their assault on the Clean Water Act with a hearing aimed at attacking the Biden administration’s rule to more clearly define the law's scope of protections. Center for Progressive Reform Member Scholar Dave Owen, a law professor at the University of California College of the Law in San Francisco, was the only witness invited to fend off these dangerous attacks.
James Goodwin | February 9, 2023
“Finish the job” was a fitting theme for President Joe Biden’s second State of the Union address. It provided a valuable oratorical perch from which Biden could both tout his impressive legislative successes of the last two years and call on Congress to pass laws that, to quote Biden himself, help build an economy and support a society “from the bottom up and the middle out.” But Biden needs to heed his own call to “finish the job.”